from the good-ruling dept

It looks like Section 230 protections win out again. Some of the regular critics on this site like to make odd claims about Section 230 -- insisting the Section 230 is quite limited, leaving a site liable if it cannot prove who created the content, or that it simply does not apply, if the site in question "helped" create the content in any way. A new ruling should help clear up those misconceptions. The case involves a car dealer, Nemet Chevrolet, that was upset about negative reviews on ConsumerAffairs.com. ConsumerAffairs is one of many "gripes sites" out there -- with one interesting distinction. It works closely with class action lawyers to review the gripes and seek out opportunities for filing class action lawsuits. While this may be somewhat distasteful (class action lawsuits are all too often much more about getting money for the lawyers than actually helping the class), the site, like any other gripes site, is protected from defamation claims by Section 230.

Eric Goldman discusses the latest ruling, in which the appeals court upheld the dismissal by the district court, using Section 230. In the ruling, the court rejected two specific claims that Nemet made to try to get around Section 230. First, Nemet claimed that since ConsumerAffairs solicits complaints and asks users questions to draw out the details, it is partially responsible for the content (an attempted misreading of the Roommates ruling). However, the court tossed this out, saying that the problem with Roommates was that the questions asked specifically requested illegal information. That is not the case with ConsumerAffairs.

The other attempt by Nemet to get around the Section 230 issue was to say that because it couldn't figure out who one of the complaints came from, ConsumerAffairs must have made it up, and thus it was liable since it created the content. That didn't work either. Eric Goldman points out how silly this logic is on the part of Nemet:

This allegation has an obvious (and IMO embarrassing) logic flaw. Even if Nemet can't use its records to validate the facts in a consumer review, ConsumerAffairs.com's fabrication of the post is only one of many possible explanations. The court notes some other possible explanations: "the post could be anonymous, falsified by the consumer, or simply missed by Nemet." (I would also add the possibility of weak recordkeeping by Nemet).

So, once again, we see that Section 230 is working properly, requiring that liability be properly applied. It does not mean that there is no liability at all -- just that you can't blame the tool or platform provider for the work of a user. The user may still be liable -- which is fine -- but the service provider is not.

Reader Comments

First, the last half of the post is all clickable, because you failed to close your SEO spam link in the middle of the piece.

Second, you are using Goldman's interpretation of the courts ruling on the second attempt to get around the overbroad protections of section 230. The court actually appears to have made at least one error here, seeming to allow the sites to specifically NOT collect any information and still host the material (allowing anonymous posting as an excuse). It means that any ill intentioned service provider of any sort could write nasty posts, say "it's an anonymous post" and walk about without any liablity.

The right case on the right day will crack 230 wide open, if the congress doesn't change the law soon enough to make it more reasonable.

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"The right case on the right day will crack 230 wide open, if the congress doesn't change the law soon enough to make it more reasonable."

Something tells me if it was "cracked wide open" we would not be reading your comment complaining about it not being reasonable. I doubt many sites would allow posting comments at all if they had to police what there users say.

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Wouldn't it be ironic that all the people who complain about Section 230 would suddenly find themselves voiceless when websites disable commenting? I'm sure people would still come to TD to read, but who is going to bother going to a site someone like Anti-Mike set up just to read his opinions on another blog?

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Websites wouldn't have to disable commenting, they just need to know who is commenting.

For me, 230 lacks in one simple regard: if you want to be an innocent host, you have to know who your clients are. A simple court order would allow those who have valid reason to know who a poster is to find out, and to be able to proceed in court against them.

For the moment, the hosts are providing not just a forum, but a method by which to hide their identity. That sort of puts the advantage all on one side, doesn't it?

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...SEO spam link...

Uh, personally I like the cross-linking of posts. It's very useful when you don't know the background of a story, and it makes it easier for new readers to learn some of the basic editorial philosophies of this blog. Why do you insist on being such a jerk about everything?

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Marcus, many of those links aren't done to inform you, the reader, but to carefully guide googlebot around and to create SEO links.

Mike also does it to create the illusion of fact where none exists, often using statements like "we have already shown that..." which links to a post which is substantiated only by either Mike's own opinion, or an opinion piece posted by someone else.

It's the building of a house of cards on subjects. Mike starts with simple posts, and then expands out from there, building up the structure of opinion and half facts, before suddenly declaring something a fact, when it is really just a sum of opinion and very selective quoting.

It's how it is done, and it's fun to watch, and even more fun to call Mike out when he does it.

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Perhaps you see it that way. But I think this just goes to demonstrate exactly what I was accusing you of yesterday: you will always automatically assume the worst, and attack Mike, no matter what.

You don't know Mike's motivations for putting the links there. You call them "SEO spam", but if I and others actually find them useful, then by definition they are not spam. Yes, I'm sure part of the intent is to keep older articles visible to search engines, but it's a bit of a stretch to call that spam.

I understand your "house of cards" argument, though honestly I feel like you expect a level of objectivity that this blog has never claimed it delivers. It's very clear that Mike's opinions guide the editorial direction of TechDirt. I've never felt like this site was trying to mislead me into thinking it's something other than it is: a platform for reporting, opinion and analysis by someone who has convinced me he has valuable insights into certain topics.

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And if Anti-Mike doesn't like what Mike ever says then why spend so much time and energy destroying his opinions? I'm not trying to stick up for Mike....he can fight the battles he chooses to fight....I'm just saying if you don't like the opinion being set out there, don't read it. I don't like cars made by Ford but you wont see me at any of their dealerships "debunking" what Ford says about its products or how it views itself in the automobile market.

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The hilarity of the situation is that Anti-Mike tries to use the same tactics on each and every article on this site, regardless of the subject material.

If he was more selective in his comments, then maybe people would start taking him more seriously. As it stands, regular readers have long since realized that he's much like a conspiracy theorist, who must attack any opposing views in order to remain "credible".

Or the dealership could have.......

Just brought the customer back and worked as hard as they could to rectify what their problem was and maintain a happy customer. Instead of wasting time and energy and money in bringing a website to court because of a bad review they received on said site.

Dealerships, and any business for that matter, need to realize there is a lot of tools out there for potential customers to use and make informed decisions about where to spend their money. You cant please everyone, I am aware of this, but you can do your best to make sure you try to at least. And if it looks like you made the effort to help a customer, it may reflect if they decide to post about their experience on a website.

I work at a car dealership, a small one in a small city, and we have a reputation of being a good and honest business. The owners have worked hard at earning the trust and respect of the people our area and Im sure the owner doesn't want negative reviews about his business on a website but at the same time he probably wouldn't waste his time and money trying to sue the website because some anonymous person posted a bad review. He knows there is only so much that can be done for people and he makes sure all of his employees do what it takes to make people feel welcome and even appreciated when they come here. That may sound like a shameless plug for where I work but its true and its what that dealership needs to do. Don't pretend you care about your customers. Care about your customers.

Nemet v. ConsumerAffairs.com

Mike calls ConsumerAffairs "one of many 'gripes sites' out there -- with one interesting distinction. This is what I believe is known as damning with faint praise.

A virtual fossil in Internet time, we have been around since 1998 and are much more than a "gripes site", a somewhat pejorative description of a site that enables peer reviews.

In addition to "gripes," we provide a very active and very expensive consumer news operation, an extensive database of safety recalls, state-by-state guides to Small Claims Court, Lemon Laws and other consumer protection resources.

Mike alleges that we "work closely with class action lawyers to review the gripes and seek out opportunities for filing class action lawsuits. While this may be somewhat distasteful (class action lawsuits are all too often much more about getting ..."

This is Mike's opinion but a.) we do not "work closely" with class action lawyers. We maintain an arm's length relationship and do not profit from or participate in any litigation that arises as a result of legal perusals of our site; and b.) while it may be true that lawyers stand to make handsome profits on some class action cases, they also often lose huge sums prosecuting unsuccessful cases. The very definition of a class action is that it combines cases which are too small to be pursued individually and it is thus not surprising that individual consumers do not routinely profit handsomely from such cases.

Class actions do, however, represent a potentially significant expense to corporate wrongdoers and are generally regarded as having at least some deterrent effect. I am always surprised at how eager many journalists and bloggers are to take the side of corporate interests by blindly spouting the tired old argument that consumer litigation benefits only lawyers.

By the way, several posters here have raised the issue of anonymous postings. We do require complainants to provide name, email and snail mail addresses, although we publish only first name and city.

Freedom of the press is a right of everyone, not just credentialed journalists. We should all be grateful that the courts continue to recognize the benefits of free expression in a free society.

Here is the way I feel about consumerafairs.com The business that they allow to get slandered should be allowed to respond to the allegations that they allow posted on their site. I personally own a used car dealership which has 3 horrible sounding allegations and if you just read the articles and don't know the other-side I do look bad. But here is the truth all 3 persons that complained about me got angry because I repossessed the car after they defaulted in making payments on the car they financed thru me. 2 of them never even made the 1st payment and drove the car for a year before I was able to find the car. I did have to lie to one of them to make him believe I will pay him money if he returns the car. Is lying bad if someone stole your property and your just trying to get it back? These people stole cars from me with a legal loophole (since police will not get involved in a automobile finance gone bad)and drove them for 6-12 months without ever making any payments or even try to make a payment. Now they are angry cause I outsmarted them and repossessed the car finaly. Should the public be allowed to know the whole story if we are going to hang the business for something they supposedly did?